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Case 1:20-cr-00330-AJN Document 97-21 Filed 12/14/20 Page 13 of 29

E. The human rights objections that may conceivably be open to Ms Maxwell should she face extradition to the US in relation to the charges on the superseding indictment dated 7 August 2020

35. Finally, it is highly unlikely that Ms Maxwell would be able to demonstrate that her extradition would be incompatible with her rights under the ECHR 86. The human rights grounds that might potentially be relied upon by Ms Maxwell are considered in the paragraphs that follow 87.

Article 3 (prison conditions)

36. Article 3 protects the right not to be subject to torture or inhuman or degrading treatment. The test is whether substantial grounds have been shown that, if extradited, the person faces a "real risk" of treatment contrary to Article 3 88. The test is a stringent one and a strong case is required to make good a violation of Article 3 89. Mistreatment must attain a minimum level of severity before Article 3 is engaged. Prison conditions can meet that test although, whether they do, depends on all the circumstances, including the personal characteristics of the detainee 90. Although Article 3 complaints based on prison conditions are not uncommon in US cases, the courts have repeatedly rejected such submissions 91 92. Further, even if there were to be a case where the systemic conditions at one or more US detention facilities were found to give rise to a serious risk that Article 3 would be breached by extradition, such difficulties are capable of being surmounted by the provision of assurances that the requested person will not be detained in those particular prisons, or by giving guarantees in relation to

86 Extradition Act 2003, s. 87.
87 There does not appear to be any basis upon which it could be said that the following rights are engaged: (a) Art. 2 (the right to life); (b) Art. 4 (freedom from slavery); (c) Art. 5 (unlawful detention); Art. 7 (no punishment without law); Art. 9 (freedom of thought, conscience and religion); Art. 10 (freedom of speech); Art. 11 (freedom of assembly); Art. 12 (the right to marry); Art. 14 (discrimination); Arts. 1-3 of the First Protocol (protection of property; right to education; right to free elections); and Art. 1 of the Thirteenth Protocol (abolition of the death penalty).
88 Soering v United Kingdom (1989) 11 EHRR 439, paras. 88 and 91.
89 Elashmawy v Court of Brescia, Italy and Ors [2015] EWHC 28 (Admin), para. 49.
90 Ireland v United Kingdom (1979-80) 2 EHRR 25, para. 162.
91 Including: Ahmad v United Kingdom (2013) 56 EHRR 1, paras. 207-210; Pham v Government of the United States of America [2014] EWHC 4167 (Admin), paras. 44-51; Bedwell v Government of the United States [2019] EWHC 3131 (Admin), para. 36; Dempsey, paras. 35-50; Sanchez v Government of the United States of America [2020] EWHC 508 (Admin); and Miao, para. 41.
92 The conditions at the New York detention facilities, MDC and MCC were a factor in the court’s conclusion in Love (see fn 76 above) that extradition would be oppressive in light of Mr Love’s "rather particular circumstances" which included a serious health condition (paras 102 and 106-108). The decision in Love was based on section 91 of the 2003 Act, and the court made no finding under Article 3 (para 123). In Hafeez, which was decided in January 2020, the High Court received the same evidence as has been before the court in Love, and concluded that "the evidence in this case falls well short of the necessary threshold" to prove a breach of Article 3 based on the conditions at MDC and MCC (see Hafeez v Government of the United States of America [2020] EWHC 155 (Admin), para. 66).

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